1606160 (Refugee)

1606160 (Refugee) [2017] AATA 1268 (21 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606160
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:21 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 21 July 2017 at 9:34am

CATCHWORDS
Refugee – Protection visa – Malaysia – No Convention claims – Economic hardship – Deceived by Malaysian migration agent – Burden of familial responsibilities – Good prospects for ongoing employment
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 499
Migration Regulations 1958, Schedule 2
CASES
MZZIA v MIBP [2014] FCCA 717
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia (Malaysia), applied for the visa [in] February 2016. The delegate refused to grant the visa on the basis that the protection claims were very vague and limited and that effective protection was available to him.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed that he was born on [date] in the Malaysian state of Selangor and claimed to be a citizen of the Federation of Malaysia.
On departmental file (CLF[number]) is certified copy of the applicant’s valid Malaysian passport issued [in] 2015 as well as a copy of the applicant’s national identification card indicating that he resided in Langat in Selangor.[1]
[1] DIBP Folio 38-40
The applicant arrived in Australia [in] November 2015 and applied for a class XA subclass 866 protection visa [in] February 2016 and was provided with an associated bridging visa at the time of the protection visa’s application.
According to his 866C form submitted at the time of application, the applicant had submitted very limited written claims. The applicant claimed that he fears harm arising from a travel agent who he paid money to depart Australia for work purposes and will be looking for him on his return as well as fears arising from difficulties in finding employment, if he were to return to Malaysia.
A delegate on behalf of the Minister refused to grant the visa [in] April 2016 and the applicant applied to have that refusal decision reviewed by the Administrative Appeals Tribunal [in] May 2016. A copy of the delegate’s decision record accompanied this review application.
The applicant appeared before the Tribunal on 14 July 2017 at a schedule hearing to provide evidence and present arguments that he is owed Australia’s protection obligations with the assistance of an interpreter in the Bahasa Malaysian and English languages.
During the hearing, the applicant claimed that he has never been married and has no children; that his father was [ethnicity] but he identifies ethnically as Malay by virtue of his mother being Malay; and that his religion is Islam.
The applicant claimed that he has living Langat Selangor most of his life with his mother and step-father and claimed that his father died when he was very young. He claimed that he has [composition of siblings].
The applicant claimed that he was unable to complete further studies after matriculating in secondary school due to his [sibling]’s illness. Nevertheless, since studies, the applicant has been working as [occupations] and while working at [employer]. The applicant claimed that he finished at [employer] until August 2015 because there were opportunities in Australia and that he worked at his step-father’s [small business] until he departed for Australia in November 2015.
The applicant claimed that he departed for Australia to support the medical bills for his [sibling] who had been hospitalised and treated for [medical condition] in 2007. The applicant claimed his [sibling] required specialist medical services about [number] times a month as well as prescribed medicines. The said that he has been sending about [amount] Australian dollars a week in Australia (where the applicant claimed he was earning about [amount] Australian dollars a week) back to Malaysia for these medical expenses. The applicant claimed that he also wished to save enough money while in Australia to open a [shop] in Malaysia.
The Tribunal asked to the reasons he considered himself a refugee given it has spent some time at the beginning of the hearing explaining the definition of a refugee under Australian law; the applicant responded that he had paid [amount] Malaysian ringgits to arrange his departure to Australia, including suitable work. The Tribunal asked if the agent who had fell short of his expectations would be looking for his if returns to Malaysia; the applicant said he would not and that he would not targeted for persecution for any reason by the agent. Nevertheless the applicant expressed that he was deeply outraged about the fraud that had been committed against him and argued that Australia should guarantee that he would not be defrauded by cheating agents into the future as there were many people from Malaysia travelling to Australia who have been deceived out their money, just as he had been.
At the end of the hearing, the applicant did not advance another claims for protection and no further submissions were required. No submissions or documents were submitted right up to the time of making this decision.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of the Federation of Malaysia and provided a copy of his passport to the Department with his application, as well as his identification card. With no evidence to the contrary, the Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Findings on Claims
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.
Overall, the Tribunal found the applicant’s written but otherwise limited claims were mostly consistent with his oral claims and that the applicant was able to answer all the Tribunal’s questions in a straightforward and frank manner. The Tribunal did not find any major inconsistencies in his critical claims for protection and assess the applicant to have been a credible and reliable witness.
The Tribunal accordingly accepts the applicant’s claims, both written and oral, claims about his personal circumstances: This includes that the Tribunal accepts that his father passed away when the applicant was young and that his mother remarried man who became his step-father; that he has [a certain] sibling as claimed; and he had [number other]siblings as claimed. It is accepted that one of his [siblings] has been seriously ill with [medical condition] since 2007 and she requires regular specialist medical attention and pharmaceuticals as claimed.
The Tribunal also accepts that the applicant has been working full time right up to his departure for Australia and for most of that the time he had work commensurate with his skills.
Past Harm: Cheated by an Agent
The Tribunal notes that in the applicant’s written claims he is seeking Australia’s protection obligations because he was promised legal work in Australia by an agent when he arrived in Australia but was asked to work on a farm when he arrived. He claimed that the agent made his work illegally, that he feared being handed over the authorities and he had paid [amount] Malaysian ringgits. The applicant also wrote that he feared the agent would find him if he returned to Malaysia.
However during the scheduled hearing, the applicant claimed that a man named [name] wrote the claims on his behalf and submitted it on his behalf. He also did not claim during his oral testimony that he feared being persecuted or harmed or even threatened by the agent back in Malaysia in the foreseeable future. The applicant’s concern is that he had been cheated out of his money and intimidated into illegal work and these practices were prevalent in Malaysia for Malaysians seeking work in Australia. Based on the applicant’s oral testimony, the Tribunal does not accept the written claim that the applicant fears the cheating agent he had employed in 2015 will be seeking out the applicant for any reason at all if he were to return to his country of nationality and reference
Nevertheless, it does accept he had been defrauded in the recent past as claimed and that he was compelled to work illegally against his expectations until he was granted an associated bridging visa with work rights when he applied for a protection visa, as claimed during the scheduled hearing.
As the Tribunal explained to the applicant, he had applied for Australia to grant him a protection visa based on prospective fears and it could not to guarantee the applicant would not be conned, defrauded or cheated in his home country into the future. Moreover the applicant did not advance that he was harmed in the past for any of the reasons mentioned in s.5J(1)(a): this ethnicity or race, his religion; his nationality, his membership of a particular social group or his political opinion. Given the applicant stated at the scheduled hearing that has no prospective fears from an agent and has not outstanding debts to anyone back in Malaysia, the Tribunal finds that the applicant does not have a real chance of serious harm or any harm for any reasons outlined in s5J(1)(a), arising from a 2015 transaction in which the applicant was defrauded by a third party claiming to broker the applicant travel and lawful work in Australia, if he were to return to Malaysia, now or into the foreseeable future.
Based on this specific and weak claim, the applicant does not have a well-founded fear of persecution at all. Based on the same findings of fact about this specific and weak claims, there are no substantial reasons for the Tribunal to believe that, as a necessary and foreseeable removal of the applicant from Australia to his country of reference, he will face a real risk of significant harm of any kind, pursuant to s.36(2)(aa).
Economic Hardship
The Tribunal has considered the residual claims that the applicant will face a real chance of serious harm or a real risk of significant harm because he shared the burden of the medical expenses pertaining to his [sibling] as well as the living costs arising from finding work and living in Malaysia.
The Tribunal notes that the applicant claimed during the scheduled hearing that he lost his work in Malaysia and claimed that he ‘lost everything’. When the Tribunal asked if he could find work given he had been working right up to the time he departed, the applicant responded that he wanted to try something new in running his own business but he needed to save to build the required capital and that he could do that in Australia. The Tribunal also discussed the country information about the Malaysian economy that was from the most recent country report about Malaysia issued by Department of Foreign Affairs and Trade. This information included the economy in Malaysia continuing to grow and that unemployment was relatively low. In responding to this information, the applicant said it was his [sibling]’s illness that made saving for the future very difficult. The applicant elaborated that the added responsibility of financing his [sibling]’s medical costs made that difficult. The Tribunal noted that the applicant is one of [number] adults in his immediate family with [number] minors, one of which was very ill and asked if the combined activities of [number] adults had the capacity to care for his [siblings] who were minors; the applicant responded that if all adults were in Malaysia it would be difficult. The Tribunal asked if the applicant would be denied any basic services or even starve; the applicant said he would not but the economic challenges will be very difficult.
While the Tribunal is sympathetic about the applicant’s [sibling] and that his commitment to [ensuring] his family can afford medical and living expenses, the Tribunal does not accept that the applicant faces a real chance of serious harm arising from his personal circumstances in the context of Malaysia’s economic performance. The applicant is youthful; he has no children; and is fit and able enough to locate work in Australia in the [certain] sector. He has constant work in Malaysia commensurate with his skills. He has an ambition to run his own [store]. These accepted circumstances strongly indicates the applicant has a good work ethic and that he will be able to find employment in anywhere in Malaysia whose basic economic indicators, as discussed during the hearing, are sound. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work if he were to return to Malaysia, it does not accept the applicant will not be able to access paid employment, given his overall motivation and work experience into the reasonably foreseeable future. The Tribunal acknowledges the applicant fears that he shares the burden of generating an income with his father, his mother and one of his siblings who is also an adult and that they are responsible for [number] minors, one of which has significant ongoing health problems. It accepts that if the applicant returns, the income of the family unit will fall affecting its purchasing power. It accepts he will face difficulties in saving for the future for a new business. However it is also noted that the family has been able to afford medical expenses prior to the applicant’s departure to Australia. The Tribunal acknowledges that the applicant has genuine personally held fear regarding the cost of living being too high and the remuneration in low skilled work too low if he were to return to Malaysia.
However the Tribunal has placed considerable weight on the country information that the Malaysian economy is growing in size and sophistication. In this regard, the Tribunal notes the relatively negligible poverty rates in Malaysia. The Tribunal also notes that the applicant advance the claim he faced difficulties but no denial of services or even starvation for any reason or any difficulties at all related to s.5J(1)(a). It does not accept that the applicant ‘has lost everything’ given he has family support, skills and work experience relevant to the Malaysian labour market. It has also placed some emphasis on the burden of the applicant’s accepted familial responsibilities as claimed that are currently and will be shared into by [number] other adults the foreseeable future shared and it places very little weight on whether the applicant will be able to save for business in the future as amounting to serious or significant harm. For all these reasons, cumulatively considered, the prospects of finding work and generating income in Malaysia based on the applicant’s circumstances and his familial responsibilities do not amount to the applicant facing a harm that will amount to serious harm, in the sense that the applicant and his family will experience severe economic hardship or deny them capacity to earn livelihoods that threatens the person’s capacity to subsist or the applicant and his family will be denied access to basic services, where the denial threatens the person’s capacity to subsist. Accordingly, the applicant does not have a real chance of serious harm arising from his economic and personal circumstances for any reasons mentioned in s.5J(1)(a) or any other claimed reasons, if he were to return to Malaysia from Australia, now or in the reasonably foreseeable future.

With regard to the applicant’s claims about economic hardship, the Tribunal finds that the applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to the Federation of Malaysia, and does not satisfy the criterion in s.36(2)(a) in this regard.
The Tribunal has considered if there are any reasons to substantial reasons to believe, the applicant will face a real risk of significant harm arising from the applicant’s economic and personal circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by 91R(1)(b) in the context of s.36(2)(a).[2] The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia and does not face a real chance of serious harm based on these specific claims. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself, his parents and his siblings as well as some medical expenses if removed from Australia, it does not accept the applicant will not be able to access paid employment anywhere in Malaysia, given his education and overall experience as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A). Furthermore the Tribunal finds there is no intention on the part of the governing of the Malaysian economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia for Malaysia, based on the applicant’s familial and economic circumstances will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.
Cumulative Findings
[2] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].
Having considered the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm arising out of his (5J(1)(a) reason) on return to Malaysia and in the foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution that will satisfy s.36(2)(a) for any reason.
Having assessed all of the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treating or punishment, pursuant to s.36(2)(aa) of the Migration Act.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criteria in 36(2)(a), the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 36(2)(aa).
There is no suggestion that the applicant satisfies 36(2) on the basis of being a member of the same family unit. The Tribunal affirms the decision not to grant the applicant a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1268

21 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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